A flood of suits fights contraceptive coverage

New York Times :
January 26, 2013

Catholics, evangelicals and Mennonites are challenging — in a flood of lawsuits — a provision in the new health care law that requires employers to cover birth control in employee health plans. It's a high-stakes clash between religious freedom and health care access that appears headed to the Supreme Court.

In recent months, federal courts have seen dozens of lawsuits brought not only by religious institutions such as Catholic dioceses but by private employers ranging from a pizza mogul to produce transporters who say the government is forcing them to violate core tenets of their faith.

Some of the lawsuits have been turned away by judges convinced that access to contraception is a vital health need and a compelling state interest.

Others have been told that their beliefs appear to outweigh any state interest and that they may hold off complying with the law until their cases have been judged.

“This is highly likely to end up at the Supreme Court,” said Douglas Laycock, a law professor at the University of Virginia and one of the country's top scholars on church-state conflicts. “There are so many cases, and we are already getting strong disagreements among the circuit courts.”

President Barack Obama's health care law, the Affordable Care Act, was the focus of a highly contentious Supreme Court decision last year that found it to be constitutional. But a provision requiring the full coverage of contraception remains a matter of fierce controversy.

The law says companies must fully cover all “contraceptive methods and sterilization procedures” approved by the Food and Drug Administration, including “morning-after pills” and intrauterine devices whose effects some contend are akin to abortion.

As applied by the Health and Human Services Department, the law offers an exemption for “religious employers,” meaning those that meet four criteria: their purpose is to inculcate religious values, they primarily employ people who share their religious tenets, they primarily serve people who share their religious tenets and they are nonprofit groups under federal tax law.

Many institutions, including religious schools and colleges, don't meet those criteria because they employ and teach members of other religions and have a broader purpose than inculcating religious values.

Defenders of the provision say employers may not be permitted to impose their views on employees, especially when something so central as health care is concerned.

“Ninety-nine percent of women use contraceptives at some time in their lives,” said Judy Waxman, a vice president of the National Women's Law Center, which filed a brief supporting the government in one of the cases. “There is a strong and legitimate government interest because it affects the health of women and babies.”

Even more challenging cases involve private companies run by people who reject all or many forms of contraception.

One of the biggest cases involves Hobby Lobby, which started as a picture framing shop in an Oklahoma City garage with $600 and is now one of the country's largest arts and crafts retailers, with more than 500 stores in 41 states.

David Green, the company's founder, is an evangelical Christian who says he runs his company on biblical principles. Green does not object to covering contraception but considers morning-after pills to be abortion-inducing and therefore wrong.

“We simply cannot abandon our religious beliefs to comply with this mandate,” Green said in a statement.

The 10th U.S. Circuit Court of Appeals last month turned down his family's request for a preliminary injunction, but the company has found a legal way to delay compliance for some months.

Half a dozen of these cases will probably be argued by this summer, perhaps in time for inclusion on the Supreme Court's docket next term. So far, two- and three-judge panels on four federal appeals courts have weighed in, granting some injunctions while denying others.